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Lord Sainsbury of Turville: I think the point made by the noble Lord, Lord Jenkin, is that we could achieve the same end by keeping Sections 72 and 74 and amending them specifically for British Energy. The reason for not doing so is that those sections are completely out of date and are quite random in their effect. In that context, it makes total sense to have a clean sweep of what is now outdated and rather arbitrary legislation in terms of its impact.

The provisions are narrowly defined and relate only to a small number of companies—the successor companies created in the industry restructuring privatisation. They apply only to that small number of specific companies as companies, and not to any wider corporate group of which they may now be part, or, indeed, to any new companies. Therefore, this seems a good moment—if we are going to amend the provision—to do a clean sweep and bring this legislation up to date.

Lord Jenkin of Roding: If one is in a hole, one should stop digging. With the greatest respect to the noble Lord, Lord Sainsbury, he seems to be digging himself into an ever deeper hole. Quite rightly, he says that Sections 72 and 74 dealt with the predecessors to the successor companies and that the Government were limiting their powers to a small shareholding in any of the successor companies.

I have not studied the debates but the Act is clear. If the Clause were simply dealing with successor companies, one would accept that. But that is not what

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the clause says. It seeks to sweep away all the constraints, all the limitations, and the Government are giving themselves the power to buy securities in any company. I am sure that the Minister understands why, on this side of the Committee, we are somewhat suspicious. As the noble Lord, Lord Tombs, said, the circumstances may arise when a company would be happy to be taken over by the Government and save something from the fire.

I do not believe that Parliament should allow this to go by. We cannot vote in Grand Committee, but I make it clear that we shall want to return to this matter at a later stage. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.30 p.m.

The Deputy Chairman of Committees: Amendment No. 9 will, if it is put to a vote, pre-empt Amendment No. 10.

Lord Jenkin of Roding moved Amendment No. 9:

    Page 2, line 19, leave out subsections (2) and (3).

The noble Lord said: Amendments Nos. 9 and 10 have been grouped. The substance of Amendment No. 9 has already been covered in our discussion about the repeal of Sections 72 and 74.

Clause 2(2) refers to the Secretary of State's ability to,

    "repeal to any extent any of the other provisions of Part 2 of the Electricity Act".

I have much sympathy with the argument that, if there are provisions on the statute book that are spent because they were aimed at a particular situation that obtained some years earlier and for which there is no continuing need, it is right, in the interests of tidying up the statute book, that they should be repealed. However, Clause 2(3) gives rise to some concern. Subsection (2) gives the Government the power to make an order, and Subsection (3) says that the order,

    "may make consequential, transitional or saving provision (including provision modifying the Electricity Act 1989 or any other Act)".

That goes far beyond what is appropriate in such circumstances.

The Government have sought to explain their wish to deal with the matter by order by saying that it would give them more time to examine the position in detail and, as the noble Lord, Lord Sainsbury of Turville, told us at Second Reading, consult stakeholders to make sure that there are no untoward consequences of any repeals that they have in mind. That may be a reasonable way to proceed, but Amendment No. 11 would make certain that any such action would be subject to affirmative resolution.

In the mean time, we have the following words:

    "modifying the Electricity Act 1989 or any other Act".

Amendment No. 10 would add the words "affected by this section". That is a necessary limitation of the power of the repeal. A few moments ago, we discussed the words,

    "to acquire securities in any company".

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Now, the Bill says that the order-making power can be used to amend not only the Electricity Act 1989 but any other Act. We could take out the words "or any other Act", but the amendment, which stands in the name of several Members of the Committee, suggests that the provision should merely be qualified by the addition of the words "affected by this section".

For the life of me, I cannot see why the noble Lord, Lord Sainsbury of Turville, could not accept the amendment. He has said that that is what the subsection means. Why not accept the amendment? I beg to move.

Baroness Miller of Hendon: I shall add nothing to what my noble friend said about Amendment No. 9, but I shall say a few things about Amendment No. 10.

As my noble friend said, our amendment is a simple drafting amendment that would in no way affect or detract from the operation of the Act. It would remove an ambiguity, so that there could be no possible misunderstanding or disagreement about what Parliament intends. Clause 2(2) gives the Secretary of State power to amend by order the provisions of Part II of the Electricity Act 1989. Clause 2(3) gives the Secretary of State power to make,

    "consequential, transitional or saving provision (including provision modifying the Electricity Act 1989 or any other Act)".

It is the words "or any other Act" that bother us. They could be very ambiguous in their effect. I shall not trouble the Minister by reminding him of the day that we had the little contretemps about what the phrase "or otherwise" meant, but the phrase "any other Act" is far too wide.

Undoubtedly, the Minister will tell us that, when an Act or part of an Act is repealed, it may be necessary for there to be,

    "consequential, transitional or saving provision",

and that other statutory provisions that remain in force may refer to the repealed Act in some way and will need to be covered. Such residual provisions may be in the same Act, of which only part must be repealed, or they may be in a totally separate Act. As I said, we understand and accept that. However, the words "or any other Act" go too far. Unless they are qualified, they could be taken to mean absolutely any other Act whatsoever, including Acts irrelevant to the Electricity Act 1989 or to any aspect of the electricity industry. I anticipate that the Minister will tell us that the words "any other Act" are governed by the qualification that such amendment must be consequential, transitional or saving, following the provisions of the Act. The Minister nods his head, so I must be right to suggest that that is what he will say.

We should not legislate in a way that creates a need for esoteric rules of construction to interpret what Parliament is saying. Nor should that interpretation depend on the application of legalistic semantics. I still recall, as I mentioned, the lengthy battle about the words "or otherwise". I am tempted to repeat it, but I ought not to; I do not want to irritate the Minister before he stands up.

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Before the Minister tells me, as he frequently does, that my amendment is unnecessary, I ask him to humour me on this occasion by adding just four clarifying words—whether they are necessary or not, as he may say—to the clause. It will not expend so much paper and ink as to cause an ecological disaster. My noble friend Lord Jenkin of Roding said that he had already mentioned that. It would be neither a political defeat nor a rebuff to the draftsman. It would be just belt and braces, and, although I wear neither, I hope that the Minister will remove the ambiguity, however remote he believes it to be.

Lord Sainsbury of Turville: I shall speak to both amendments but start with Amendment No. 9.

Subsections (2) and (3) introduce a power to repeal the remainder of Part II of the Electricity Act 1989. Part II is concerned with the reorganisation of the electricity industry from its old nationalised structure to the successor companies, which were then sold into the private sector. As such, it contains a large number of provisions for transferring assets from the old bodies to the new companies; provisions to abolish the old bodies; provisions to finance the successor companies while they remained in the public sector; and, ultimately, provisions to sell the shares in those successor companies into the private sector. In short, that part was a set of transitional provisions that enabled the privatisation of the industry.

Subsections (2) and (3) provide a delegated power to repeal provisions of Part II, provisions that were designed to be transitional in nature and are now outdated. We are doing that for two reasons. First, we are already, through subsection (1), repealing Sections 72 and 74 of the Act. We want to guard against any unintended consequences caused by interactions between those sections and the rest of that part. We want to be careful that nothing in the remainder of the part could act as an obstacle to the contingency plans that we have in place.

Secondly, as we are already repealing Sections 72 and 74, and as we want a power to repeal any other provision in that part that might act as an obstacle, it is a sensible opportunity to take a power to repeal the whole of Part II. That is a sensible approach to tidying up old legislation that is no longer applicable. We are taking a delegated power to do that, to make sure that we have time to go through Part II in detail and check whether any of the provisions that it includes do or should still have lasting effect.

[The Sitting was suspended for a Division in the House from 4.39 to 4.48 p.m.]

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